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[2020] ZALCJHB 255
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Mgengo v Lekwa-Teemane Local Municipality and Others (J452/20) [2020] ZALCJHB 255 (11 June 2020)
THE
LABOUR COURT OF SOUTH AFRICA,
JOHANNESBURG
Not
Reportable
Case
no: J452/20
In
the matter between:
NDODA
MGENGO
Applicant
and
LEKWA-TEEMANE
LOCAL MUNICIPALITY First
Respondent
GOBAKWANG
J MOATSHE
(ADMINISTRATOR
OF 1
ST
RESPONDENT)
Second Respondent
BHEKI
MHLONGO
(CHAIRPERSON
OF DISCIPLINARY ENQUIRY)
Third
Respondent
Heard:
2 June 2020
Delivered:
This judgment was handed down
electronically by circulation to the parties' legal representatives
by email, publication on the Labour
Court’s website and
released to SAFLII. The date and time for hand-down is deemed to be
10h00 on 11 June 2020.
Summary:
Urgent application – declaring that suspension automatically
lapsed in terms of Regulation
6(6)(a) of the Disciplinary Regulations
– no jurisdiction to enforce compliance with COVID-19
Regulations – the applicant
has substantial redress on due
course to request for documents and further particulars in relation
to the impending disciplinary
hearing.
JUDGMENT
NKUTHA-NKONTWANA,
J
Introduction
[1]
The applicant, Mr Ndoda Mgengo (Mr Mgengo), the Municipal Manager of
the
first respondent, Lekwa-Teemane Local Municipality
(Municipality),
approached the Court by way of
urgency
seeking the following relief:
1.1
A declaration that his suspension
automatically lapsed on 19 May 2020, in terms of Regulation 6(6)(a)
of the Local Government: Disciplinary
Regulations for Senior Managers
of 2010 (Disciplinary Regulations);
1.2
Directing the Municipality and the second
respondent, Mr Gobakweng Moatshe (Mr Moatshe), the Municipal
Administrator, to reinstate
Mr Mgengo with immediate effect;
1.3
Interdicting the respondents from
proceeding with the disciplinary hearing against him, until such time
as:
1.3.1
The Municipality and Mr Moatshe have
implemented measures to mitigate possible exposure to Covid-19 during
the disciplinary hearing,
in compliance with the National Disaster
Regulations and any relevant directions issued thereunder;
1.3.2
The
venue where the hearing is to be held is compliant with the relevant
legislative prescripts contained in the Occupational Health
and
Safety Act (OHSA)
[1]
, the
Regulations thereto, the Disaster Management Regulations and any
directions issued thereunder;
1.3.3
The Municipality has complied with
Regulation 5 and 16(5) of the National Disaster Regulations;
1.3.4
All participants in the hearing are
permitted to travel from their place of residence to the venue where
the hearing is to be held;
1.3.5
A disciplinary hearing is permitted or
falls under the scope of permitted services, with reference to the
National Disaster Regulations.
1.4
The Municipality and Mr Moatshe be directed
to furnish Mr Mgengo’s attorneys of record, within five days of
the order being
granted, with the following:
1.4.1
The documents listed in paragraph 8 of the
letter by his attorneys of record, dated 15 May 2020, addressed to
Jafta Inc. and;
1.4.2
The office address and contact details of
the appointed Chairperson.
[2]
The application is vigorously opposed by the first and second
respondents
(respondents) and they raised a point
in limine
in
relation to urgency.
Background
[3]
There is not much controversy on the facts of this
matter. On 19 February 2020, Mr Mgengo was placed on a precautionary
suspension
pending investigation and consequent disciplinary hearing,
if at all.
[4]
On 15 May 2020, Mr Mgengo was served with a notice
to attend a disciplinary hearing which was scheduled to take place on
25 May
2020 in the Boardroom of the Municipality. Attached to the
notice was a charge sheet containing six counts of gross misconduct.
Subsequently thereto was a barrage of correspondence between the
parties which I deal with hereunder to the extent relevant.
[5]
Mr
Mgengo’s attorneys of record addressed
a
letter, dated 15 May 2020, to Mr Moatshe wherein they asserted,
inter
alia
,
that the period of his suspension would automatically lapse on 19 May
2020 since the disciplinary hearing did not commence within
three
months as
contemplated
by Regulation 6(6)(a) of the Disciplinary Regulations.
[2]
[6]
Regulation 6(6)(a) provides as follows:
‘
If
a senior manager is suspended, a disciplinary hearing
must
commence
within
three
months
after the date of suspension,
failing which the suspension will
automatically
lapse
.’ (Emphasis added)
[7]
Another letter from Mr Mgengo’s attorneys
was addressed to Mr Jafta, the officer appointed to lead evidence,
requesting that
the disciplinary hearing scheduled for 25 May 2020 be
deferred to a date to be agreed upon between all relevant parties.
[8]
On 18 May 2020, Mr Jafta responded by stating the
following:
‘
We
refer to your letter dated the 15 May 2020 contents whereof have been
noted.
Your letter was referred
to the Chairperson for his ruling on your client’s request for
a postponement. The Chairperson has
granted your client’s
request for a postponement and has given us three (3) suggested dates
to choose one for the new date
of hearing. The dates are the 11 June
2020, 12 June 2020 and 15 June 2020 for the same place and time as
the one for the 25 May
2020.
We
await hearing from you on which of the dates is suitable to your
client.’
[3]
[9]
On
19 May 2020, Mr Mgengo’s attorneys addressed another letter to
Mr Jafta confirming the conversation he had with Mr Scholtz
from Mr
Mgengo’s attorneys and their divergent views on the
interpretation of Regulation 6(6)(a). Mr Mgengo’s attorneys
then confirmed that they had been instructed to approach the Labour
Court on an urgent basis to seek an order reinstating Mr Mgengo
should Mr Moatshe fail to provide them with written confirmation that
he, Mr Mngengo, would be allowed to report for duty and resume
his
duties as Municipal Manager with immediate effect.
[4]
[10]
Mr Mgengo’s
attorneys
also raised numerous issues and, pertinently, the legality of the
disciplinary hearing; questions of health and safety
related to the
Covid-19 pandemic; written undertakings concerning compliance with
the Disaster Management Regulations. Lastly,
Mr Mgengo requested
information pertaining to the reports and resolutions of the
Municipal Council that sectioned the disciplinary
measures taken
against him.
[11]
Mr
Jafta was adamant that, since Mr Mgengo had been served with the
charge sheet on 15 May 2020, the disciplinary inquiry commenced
that
very same day. Also, he referred Mr Scholtz to the suspension letter
which states that Mr Mgengo is ‘
suspended
for a period of three months … with full pay pending
investigations and if the disciplinary inquiry is conducted,
the
suspension will continue until the finalisation of the internal
inquiry’
.
[5]
Precautionary
Suspension
[12]
Mr
Scholtz who appeared for Mr Mgengo persisted with the argument that
his suspension automatically lapsed on 19 May 2020 since
the
disciplinary hearing was only scheduled to commence on 25 May 2020,
three months after the date of suspension. He based his
submission on
an unreported judgment of this Court by Prinsloo J in
Moloto
and Another v Kagisano Molopo Local Municipality and Others,
[6]
where, on granting leave to execute an order by Cele, J pending the
application for leave to appeal, she made the following observations:
‘
[19]
The interlocutory application dealt with the Applicants’
precautionary suspension, pending a
disciplinary hearing, on the
basis that Regulation 6(6)(a) provides that a suspended senior
manager’s disciplinary hearing
must commence within 3 months
after the date of suspension, failing which the suspension will
automatically lapse. The Applicants’
case was that their
suspensions lapsed on 4 December 2018 and as the disciplinary enquiry
had not commenced before the expiry of
the three-month period, they
have the right to be reinstated upon the expiry of the three-month
period.
[20]
Cele J accepted the Applicants’ interpretation of the said
regulation and they were reinstated.
It is evident from the
Respondents’ application for leave to appeal that Cele J’s
interpretation of the word ‘commence’
as used in
regulation 6(6)(a) is the subject of the application for leave to
appeal. The Respondents’ case is that ‘commence’
should be interpreted to mean the external manifestation of an intent
to proceed with the disciplinary process and as such the
disciplinary
proceedings against the Applicants commenced by virtue of the notices
and charge sheets that were served on them on
19 November 2018, prior
to the expiry of the three-month period.’
[13]
The
leave to appeal against the
ex-tempore
judgment by Cele, J in
Moloto
[7]
was never prosecuted to finality.
[8]
[14]
On
the other hand, Mr Moerane
,
counsel for the respondents, persisted with the respondents’
argument
that
the
dictum
in
Moloto
[9]
is distinguishable as Mr Mgengo’s
suspension
did not lapse, as the disciplinary proceeding against him commenced
on 15 May 2020, the day on which he received the
charge sheet and
notice of the internal hearing. This argument is hinged on the
judgment
the
Labour
Appeal Court (
LAC)
in
Matatiele
Local Municipality v Shaik and Others.
[10]
,
where the LAC dealt with the time limit prescribed in terms of clause
6.3 of the South African Local Government Bargaining Council
(SALGBC)
Disciplinary Code Collective Agreement (Disciplinary Code) which
provides as follows:
‘
The
employer shall proceed forthwith or as soon as reasonably possible
with a disciplinary hearing but in any event not later than
three (3)
months from the date upon which the employer became aware of the
alleged misconduct. Should the employer fail to proceed
within the
period stipulated above and still wish to pursue the matter, it shall
apply for consideration to the relevant division
of the SALGBC.’
[15]
The LAC stated that:
‘
[15]
The employer was obligated by clause 6.3 to “proceed forthwith
or as soon as reasonably possible
with a disciplinary hearing”.
The Labour Court has considered the meaning of “proceed”
in several judgments.
[16]
In
Independent
Municipal and Allied Trade Union Obo Dandala v Ekurhuleni
Metropolitan Municipality and Others
[11]
the Labour Court opined that:
‘
Proceeding
with a disciplinary hearing starts when the Municipal Manager
appoints a presiding officer. There can be no doubt in
my mind that
once a presiding officer is appointed an employer will be proceeding
with a disciplinary hearing. In my judgment,
the processes that
follow after the appointment of the presiding officer is all part of
proceeding with the disciplinary hearing
up to and including the
actual commencement of the sittings. Therefore, the relevant outer
date is the date on which the presiding
officer was appointed and not
the date on which the hearing sits as contemplated in clause 6.10.’
[17]
I would respectfully disagree with the proposition that “proceeding
with a disciplinary
hearing starts when the Municipal Manager
appoints a presiding officer.” The employee may not necessarily
know when this
occurs.
In my view, in keeping with the context
that an employee is affected by a disciplinary hearing, a hearing
proceeds only when there
is an external manifestation of the
municipality’s intention to proceed with a hearing and this
occurs when the charges are
formally furnished to the alleged
offending employee
.’ (Emphasis added)
[16]
The
principles of interpretation summarised in
Joint
Municipal Pension Fund v Endumeni Municipality
[12]
are trite. The Supreme Court of Appeal (SCA), per Wallis JA stated
that:
‘
The
present state of the law can be expressed as follows. Interpretation
is the process of attributing meaning to the words used
in a
document, be it legislation, some other statutory instrument, or
contract, having regard to the context provided by reading
the
particular provision or provisions in the light of the document as a
whole and the circumstances attendant upon its coming
into existence.
Whatever the nature of the document,
consideration must be given to the language used in the light of the
ordinary rules of grammar
and syntax; the context in which the
provision appears; the apparent purpose to which it is directed and
the material known to
those responsible for its production
.
Where more than one meaning is possible each possibility must be
weighed in the light of all these factors. The process is objective
not subjective.
A sensible meaning is to
be preferred to one that leads to insensible or unbusinesslike
results or undermines the apparent purpose
of the document. Judges
must be alert to, and guard against, the temptation to substitute
what they regard as reasonable, sensible
or businesslike for the
words actually used. To do so in regard to a statute or statutory
instrument is to cross the divide between
interpretation and
legislation.
In a contractual context
it is to make a contract for the parties other than the one they in
fact made. The ‘inevitable point
of departure is the language
of the provision itself’, read in context and having regard to
the purpose of the provision
and the background to the preparation
and production of the document.’ (Emphasis added)
[17]
In this instance, the Disciplinary
Regulation provides as follows:
‘
5.
Disciplinary procedures
(1)
…
(2)
…
(3)
…
(4)
The investigator appointed in terms of
subregulation (3)(a) must, within a period of 30 days of his or her
appointment, submit a report with recommendations to the mayor or
municipal manager, as the case may be.
(5)
The report contemplated in subregulation (4) must
be tabled before the municipal council in the manner and
within the
timeframe as set out in subregulation (2).
(6)
After having considered the report referred to in
subregulation (4), the municipal council must by way of
a resolution
institute disciplinary proceedings against the senior manager.
(7)
The resolution in subregulation (6) must –
(a)
include a determination as to whether the
alleged misconduct is of a serious or a less serious nature;
(b)
authorise the mayor, in the case of
municipal manager, or municipal manager, in the case of the manager,
directly accountable to
the municipal manager to –
(i)
appoint –
(aa)
an independent and external presiding officer; and
(bb)
an officer to lead evidence; and
(ii)
sign the letters of appointment.
6.
Precautionary suspension
(1)
The municipal council may suspend a senior manager on full pay if it
is alleged that the senior manager has
committed an act of
misconduct, where the municipal council has reason to believe that –
(a)
the presence of the senior manager at the
workplace may –
(i)
jeopardise any investigation into the alleged misconduct;
(ii)
endanger the well-being or safety of any person or municipal
property; or
(iii)
be detrimental to stability in the municipality; or
(b)
the senior manager may—
(i)
interfere with potential witnesses; or
(ii)
commit further acts of misconduct.
(2)
…
(3)
…
(4)
…
(5)
…
(6)
(a)
If a senior manager is suspended, a disciplinary
hearing must commence within three months after the date
of
suspension, failing which the suspension will automatically lapse.
(b)
The period of three months referred to in
paragraph (a) may not be extended by council.
7…
8.
Serious misconduct
(1)
The officer leading evidence who has been appointed in terms of
subregulation 5(7)(b) –
(a)
must, within 30 days of his or her appointment,
formulate and serve charges of the alleged misconduct in
a format
compliant with Annexure D; and
(b)
may summons any witness to appear before the
disciplinary hearing in a format substantially compliant with
Annexure E.
(2)
The charge sheet contemplated in subregulation (1) must inform the
senior manager of –
(a)
the alleged act or acts of misconduct;
(b)
the time, date and venue at which the hearing will be conducted;
(c)
the name of the presiding officer and the officer leading evidence;
(d)
the address at which notices and correspondence
may be served on such officer;
(e)
the right to appoint a representative of his or her choice, who may
be a fellow staff member, shop steward,
union official or any other
suitably qualified person;
(f)
the right to request further particulars or
access to documentation or copies thereof from the officer
leading
evidence, in writing, within seven days of receipt of the charge
sheet;
(g)
the right to an interpreter, whose presence must
be requested by notice in writing, addressed to the officer
leading
evidence within seven days of receipt of the charge sheet;
(h)
the right to call witnesses to testify on his or her behalf;
(i)
the fact that any request for a postponement should be directed to
the officer leading evidence
in writing not later than seven days
after receipt of the charge sheet; and
(j)
the fact that the enquiry may be conducted
in his or her absence if the senior manager or his or her
representative fails to attend the hearing, which includes the making
of a finding and the possible imposition of a suitable sanction.
(3)
The charge sheet contemplated in subregulation (1) must be delivered
by hand or registered mail to the senior
manager together with the
notice of the disciplinary hearing.
9
…
10.
Conducting disciplinary hearing;
(1)
The disciplinary hearing must commence –
(a)
within three months of the resolution to institute disciplinary
action; and
(b) on
a date not less than seven days and not more than 10 days from the
date of service of the charge sheet
and the written notice of the
disciplinary hearing on the senior manager.
(2)
The hearing must be conducted by the presiding officer
who may determine the procedures to be followed, provided
that the –
(a) rules of natural
justice are adhered to at all times;
(b) matter is speedily
resolved with the minimum of legal formalities;
(c) presiding officer in
discharging his or her obligations –
(i) exercises care,
diligence and acts impartially; and
(ii) does not consult or
confer with any of the parties or their representatives on the merits
or demerits of the case.
(3)
The officer leading evidence –
(a)
must commence the disciplinary hearing by reading out the charges to
the senior manager…’
[18]
In my view, the enquiry in the present
instance pertains to the interpretation of Regulation 6(6)(a) of the
Disciplinary Regulations
which states that a disciplinary hearing of
senior manager must ‘commence’ within three months from
the date of suspension
and not the question as to when a hearing
‘proceeds’ as provided in the Collective Agreement which,
in any event, is
only applicable to the general staff members and not
senior managers.
[19]
Regulation 10 of the Disciplinary
Regulations is pertinent, particularly, sub-regulations 10(1)(a) and
(b) which specifically provide
that the disciplinary hearing must
‘commence’ within three months of the resolution to
institute disciplinary action
and on a date not less than seven days
and not more than ten days from the date of service of the charge
sheet and the written
notice. Whilst, sub-regulation 10(3)(a)
provides that the officer leading evidence must ‘commence’
the disciplinary
hearing by reading out the charges to the senior
manager.
[20]
In
Moloto,
[13]
confronted with similar facts, Cele, J interpreted the phrase
‘
disciplinary
hearing must commence’
to mean the actual sitting of the disciplinary hearing with the
presiding officer formally conducting the disciplinary hearing.
Since, likewise, the question of the lapse of the suspension in terms
of Regulation 6(6)(b) was contested, Cele, J opined that
the issuing
of a charge sheet and postponement of the disciplinary hearing that
did not sit, do not interrupt the mandatory period
within which to
commence a disciplinary hearing in terms of Regulation 6(6)(a).
Accordingly, he found that, since the disciplinary
hearing only sat
after the expiry of the prescribed three-month period, the suspension
of the applicants in that matter automatically
lapsed.
[21]
Clearly,
Moloto
[14]
applies squarely in the present instance. An alternative submission
by Mr Moerane was the
Moloto
should not be followed in the light of the LAC decision in
Matatiele
[15]
.
I
do not agree. Unlike in the case of a junior employee, the
disciplinary hearing against a senior manager is proceeded with in
terms of the resolution of the Municipal Council in accordance
Regulation 5(6), consequent to the investigation report in terms
of
Regulation 5(4).
[22]
The issuing of the charge sheet and the
notice to attend the disciplinary hearing do not commence the
disciplinary hearing but facilitates
the process towards its
commencement. I agree with Cele, J that the disciplinary hearing can
only commence in the actual sitting
when the presiding officer
officiates over the proceedings or proverbially takes the captainship
and navigate the ship. This construction
accords with Regulation
10(1)(a) which states that the disciplinary hearing must commence
within three months from the date that
the Municipal Council resolved
to institute a formal disciplinary hearing.
[23]
I
get the impression that the purpose of the Disciplinary Regulation is
to ensure that the suspension and disciplinary hearing of
a senior
manager in the Municipality is attended to expeditiously so as to
avoid prolonged leadership vacuity which could impede
the rendering
of the Municipal services. Also, it cannot be overstated that
‘
suspension
is a measure that has serious consequences for an employee, and is
not a measure that should be resorted to lightly’.
[16]
Hence it is perfectly logical that,
once
the three-month period of suspension lapses, the Municipal Council is
debarred by Regulation 6(6)(b) from extending it.
In
my view, it is incumbent upon the Municipal Council to act with the
speed of a gazelle consequent to the resolution to institute
a formal
disciplinary hearing against a senior manager.
[24]
The essence of Mr Mgengo’s claim is
that since his suspension automatically lapsed, the failure by the
respondents to allow
him to resume his duties has rendered his
continued suspension unlawful. As he has no substantial redress in
due course, I am satisfied
that his claim in the regard is urgent.
Also, he approached the Court with the necessary speed.
[25]
In the circumstances, I am satisfied that
Mr Mgengo has made out a case for the grant of the final relief
sought in prayers two
and three of the Notice of Motion
.
Covid-19 and
compliance with the National Disaster Regulations
[26]
Declared as a global ‘pandemic’
by the World Health Organisation (WHO) on 11 March 2020, COVID-19
continues to affect
countries, companies and individuals globally.
South Africa is not spared and the issues related to the
implementation of national
measures to fight this invisible adversary
called COVID-19 would remain the main bone of contention or ancillary
issue to be dealt
with by our Courts.
[27]
In
the present instance, Mr Mgengo also seeks an interim order
interdicting the commencement of the impending disciplinary hearing
pending the respondents’ compliance with the Regulations
relating to COVID-19 issued in terms of the National Disaster
Management
Act
[17]
(COVID-19
Regulations) read with the COVID-19 Direction on Health and Safety in
the Workplace issued by the Minister of Employment
and Labour in
terms of Regulation 10(8) of the COVID-19 Regulations.
[28]
Mr
Scholtz concedes in his written submission that the relief which Mr
Mgengo seeks in this regard is not necessarily dependent
on any
right. However, he seems to suggest that this Court has jurisdiction
simply because failure by the Municipality to adhere
to the COVID-19
Regulations would affect certain fundamental rights which Mr Mgengo
is entitled to. This submission has no merit
simply because it is
trite that ‘where legislation has been enacted to give effect
to a right, a litigant should rely on
that legislation in order to
give effect to the right or alternatively challenge the legislation
as being inconsistent with the
Constitution.’
[18]
[29]
OHSA is the applicable legislation in terms
of which the Direction on Health and Safety in the Workplace is
enforced. The Labour
Inspectors are tasked with the monitoring of
compliance with this Direction and may attend at workplaces for this
purpose.
[30]
In
PSA
v Minister of Health
[19]
it was emphasised that this Court lacks jurisdiction as a court of
first instance to enforce any of the duties of an employer in
terms
of section 8 of OHSA or any obligation under the OHSA.
Therefore, this Court’s only role in respect of OHSA
is with
respect to section 35(3) which empowers it to hear appeals
against a decision of the chief inspector. Also, this
Court lacks
jurisdiction to enforce the rest of the COVID-19 Regulations issued
in terms of the Disaster Management Act.
[31]
As such, Mr Mgengo’s the claims in
this regard stand to be dismissed.
Further
particulars
[32]
Lastly, Mr Mgengo seeks an order directing
the
Municipality and Mr Moatshe to furnish his attorneys with the
documents listed in paragraph 8 of their letter dated 15 May 2020,
addressed to Mr Jafta; and the details of the presiding officer.
Regulation 8(2)(f) of the Disciplinary Regulations
provides for the
‘
right to request
further particulars or access to documentation or copies thereof from
the officer leading evidence, in writing,
within seven days of
receipt of the charge sheet’. In the event Mr Jafta fails to
discover the documents requested or further
particulars, Mr Mgengo
can approach the presiding officer with the same request at the
commencement of the disciplinary hearing.
Mr Mgengo accordingly has a
substantial redress in due course.
[33]
The claims in this regard stand to be struck off the roll for lack of
urgency.
Conclusion
[34]
In the circumstances, I am satisfied that Mr Mgengo has made a case
for the grant of the final
relief in relation to prayers two and
three on the Notice of Motion. Nonetheless, this Court has no
jurisdiction to grant the order
sought in prayer four and Mr Mgengo’s
claims in this regard stand to be dismissed. Furthermore, the relief
sought in prayer
five is not urgent and Mr Mgengo’s claims in
this regard stand to be struck off the roll.
Costs
[35]
Since both parties are partially successful, each must bear its own
costs.
[36]
In the circumstances, I make the following order:
Order
1.
The suspension of Mr Mgengo is declared to
have automatically lapsed on 19 May 2020, in terms of Regulation
6(6)(a) of the Local
Government Regulations for Senior Managers of
2010.
2.
The Municipality and Mr Moatshe are
directed to reinstate Mr Mgengo as Municipal Manager of Lekwa-Teemane
Local Municipality, with
immediate effect.
3.
The claim for the enforcement of the
COVID-19 Regulations and Direction on Health and Safety in the
Workplace is dismissed.
4.
The claim for the documents and further
particulars is struck from the roll for lack of urgency
5.
There is no order as to
costs.
__________________
P.
Nkutha-Nkontwana
Judge
of the Labour Court of South Africa.
Appearances:
For
the Applicant:
Mr WO Scholtz of Scholtz Attorneys
For
the Respondents:
Advocate MTK Moerane SC
Instructed
by:
Jafta Incorporated
[1]
Act
85 of 1993, as amended.
[2]
See:
Founding Affidavit, annexure “
NM
13
”,
pages 100 – 103.
[3]
See:
Founding
Affidavit, para 4.29; Answering Affidavit, para 32; Replying
Affidavit, para 3.36.
[4]
See:
Founding Affidavit, annexure “
NM
20
”,
pages 127 – 131.
[5]
See:
Founding Affidavit, annexure “
NM
16
”;
pages 110 – 111.
[6]
(J
4415/18) [2019] ZALCJHB 25 (21 February 2019).
[7]
Ibid.
[8]
The
ex-tempore
judgment by Cele, J has not been transcribed. However, I have since
listened to the audio recording of the
proceedings
and directed that the
ex-tempore
judgment be transcribed.
[9]
Ibid.
[10]
(2017)
38 ILJ 2280 (LAC);
[2017] 11 BLLR 1090
(LAC) at para 17.
[11]
(JR
1026/15) [2016] ZALCJHB 247 (24 June 2016) at para 15.
[12]
[2012]
2 All SA 262
(SCA);
2012 (4) SA 593
(SCA) at para [18].
[13]
Supra
n
5.
[14]
Ibid.
[15]
Supra
n
9.
[16]
See:
Lekabe v Minister Department of Justice and Constitutional
Development (2009) 30 ILJ 2444 (LC);
Lebu
v Maquassi Hills Local Municipality
[2012]
33 ILJ 642 (LC);
[2012] 4 BLLR 411
(LC) at para 40;
Biyase
v Sisonke District Municipality and Another
(2012)
33 ILJ 598 (LC); and
Rudman
v Maquassi Hills Local Municipality and Another
[2019]
JOL 41158
(LC
).
[17]
Act
57 of 2002, as amended.
[18]
See:
Mazibuko
and Others v City of Johannesburg and Others
[2009] ZACC 28
;
2010 (4) SA 1
(CC);
2010 (3) BCLR 239
(CC) at para
73. See also:
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Tourism and Others
[2004] ZACC 15
;
2004 (4) SA 490
(CC);
2004 (7) BCLR 687
(CC) at
paras 21-6; and
Minister
of Health and Another v New Clicks South Africa (Pty) Ltd and Others
[2005] ZACC 14
;
2006 (2) SA 311
(CC);
2006 (1) BCLR 1
(CC) at para
96;
Mazibuko
and Others v City of Johannesburg and Others
[2009] ZACC 28
;
2010 (4) SA 1
(CC);
2010 (3) BCLR 239
(CC) at para
73.
[19]
[2019]
1 BLLR 71
(LC).